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2011 DIGILAW 1186 (KAR)

Tulasmma K. v. Jassaram

2011-12-07

H.S.KEMPANNA, N.KUMAR

body2011
Judgment : 1. This is plaintiffs’ appeal against the judgment and decree of the Trial Court which has rejected the plaint under Order 7, Rule 11 of the Civil Procedure Code, 1908 on the ground that within the period stipulated, the plaintiffs did not pay the deficit Court Fee. 2. We have gone through the impugned order passed by the learned Trial Judge. We cannot find fault with the said order, as sufficient opportunity was granted to the plaintiffs to pay the deficit Court fee. They have not paid the same within time nor have they sought for extension of time, nor appeared in Court and pleaded any difficulty. In those circumstances, the Trial Court had no option except to reject the plaint under Order 7, Rule 11 of CPC. It is against the said decree, this appeal is filed. 3. In the appeal, they have paid the Court fee on memorandum of appeal. The Court fee ought to have been paid on the memorandum of plaint. The Court fee paid on the memorandum of appeal is Rs.2,58,036.00. The plaintiffs claim that they are farmers. According to them the land in question is agricultural land and therefore they had valued the suit for the purpose of Court fee under Section 7 of the Karnataka Court Fees and Suits valuation Act, 1958 and paid the Court fee on the land revenue paid. This contention was not accepted and the Court directed him to pay the market value of the land in question. 4. Now that in this appeal the plaintiffs have paid the requisite Court fee, we are of the view that one more opportunity should be given to the plaintiffs to agitate their rights in the Court below. We do not know whether they were really unable to pay the Court fee or were they misled by others or what is the difficulty they had in paying the Court fee in the Trail Court when they are able to pay the Court fee on memorandum of appeal. Now they have learnt a lesson. In these facts and circumstances of the case, we are of the view that the impugned order is liable to be set aside. Hence, we pass the following order.- Appeal is allowed The impugned judgment and decree is hereby set aside. Now they have learnt a lesson. In these facts and circumstances of the case, we are of the view that the impugned order is liable to be set aside. Hence, we pass the following order.- Appeal is allowed The impugned judgment and decree is hereby set aside. The Trial Court is directed to entertain the suit filed by the plaintiffs as the Court fee paid in this appeal would be transmitted to the Trail Court for payment of Court fee on the memorandum of plaint. In view of Section 64 of the Karnataka Court Fees and Suits Valuation Act, 1958 where the plaint or memorandum of appeal which has been rejected by the lower Court is ordered to be received, The Court making the order or remanding the appeal shall direct refund to the appellant the full amount of fee paid on the memorandum of appeal. We order accordingly. The High Court registry shall refund the Court fee paid on the memorandum of appeal to the appellant and the refund cheque shall be drawn on the Registrar, Bangalore City Civil Court, handed over to the appellant on being deposited in the Bangalore City Civil Court. Unnecessarily, the defendants have been put to inconvenience both in contesting the matter before the Trial Court as well as entering appearance here and contesting the matter. They should be compensated. Therefore, the appellants shall pay cost of Rs.10,000.00 to the defendants-respondents. The suit will proceed only on payment of the said cost. The suit is of the year 2007. It was submitted that evidence is over. As that stage, issue regarding Court fee was raised as preliminary issue and the impugned order came to be passed. If that is so, every endeavour shall be made by the Trial Court to dispose of the suit as expeditiously as possible.